Ex parte Webb, 225 U.S. 663 (1912)

Mr. Justice Pitney,

after making the foregoing statement, delivered the opinion of the court.

The draftsman of the indictment evidently intended to charge the offense known as “introducing liquor into

the Indian country,”- made punishable by § 2139, Rev. Stat., as amended by act of July 23, 1892, 27 Stat. 260, c. 234, and by the “Act to prohibit the sale of intoxicating drinks to Indians,” etc., approved January 30, 1897, 29 Stat. 506, c. 109.

The Circuit Court of Appeals in United States Express Company v. Friedman, 191 Fed. Rep. 673,. dealt with the question whether that portion of Oklahoma formerly known as the Indian Territory ceased to be “Indian country” upon the admission of Oklahoma as a State, so that these acts were no longer applicable, and with the question whether the admission of Oklahoma as a State had the effect of repealing them so far as pertained to the introduction of liquors, into the Territory. Petitioner’s application to this court for a habeas corpus was intended to bring that decision under review, and the agreed statement of facts was designedly so framed as to show the grounds of his contention that the locus in quo is no longer “Indian country.”

The Government, however, in resisting the application, relied for support of the jurisdiction of the District Court not only upon the acts just referred to, but also upon § 8 of “An Act to provide for the appointment of additional judges of the United States court in the Indian Territory,. and for other purposes,” approved March 1, 1895, 28 Stat. 693, c. 145.

The three enactments in question are set forth in chronological order in the margin.1

At the time of the passage of the act of 1895 the Territory known as the Indian Territory was that which was

described by metes and bounds in the act of May 2, 1890, 26 Stat. 81, 93, c. 182, § 29. It included the lands of

the Cherokee Nation, and the city of Vinita, where the petitioner’s alleged offense was committed. It is now, of course, a part of the State of Oklahoma.

It is not Open to serious dispute that if the prohibition of the act of 1895 against “carrying into said Territory any such liquors or drinks” remains operative so far as pertains to the carrying of intoxicating liquors from another State into that part of Oklahoma which was the Indian Territory, the acts admittedly done'by the petitioner constitute an offense thereunder, of which the United States District' Court has jurisdiction-. Whether the' offense is sufficiently alleged in the indictment is another question, which, on familiar grounds, is- not a proper subject-matter for inquiry on habeas corpus. Ex parte Parks, 93 U. S. 18; Ex parte Virginia, 100 U. S. 313, 339; Ex parte Carll, 106 U. S. 521; Ex parte Belt, 159 U. S. 95; Ornelas v. Ruiz, 161 U. S. 502. Recognizing this, counsel for the petitioner, upon the oral argument and in a supplemental brief, modified his original contentions, so as to deal with the act of 1895. As thus modified, the grounds upon which he relies are the following:

First, that the act of 1895, being a special act applicable to the Indian Territory, had the effect of superseding as to that Territory the existing general statute against, the introduction and saje of intoxicating liquors in the Indian country.

Secondly, that the act of 1897, being amendatory of. the general statute against the introduction and sale of intoxicating liquors in the Indian country, did not apply to the Indian Territory, because that Territory was'covered by the special act of 1895.

Thirdly, that the jurisdiction cannot be rested upon the act of 1897, because the place where the alleged offense was committed was not Indian country within the meaning of that act, since there was no Indian title remaining in the town site of Vinita; the insistence being that where there -is no Indian title, no inalienable land, and no alloted land held in trust, there can be no ‘'Indian country.”

Fourthly, that, whether the act of 1895 or the act of .1897 would otherwise be applicable, these acts were both repealed, as to that .part of Oklahoma which was formerly the Indian Territory, by the force of the Oklahoma Enabling Act of June 16, 1906, c. 3335, 34 Stat. 267, under the authority of which the constitution of Oklahoma was adopted and a state government established, covering the territory previously known as Oklahoma and the Indian Territory; and pursuant to which certain statutes' were afterwards enacted by the state legislature, vizi, an act of March .24, 1908 (Laws of 1907-8,- p. 594), known as the Billups Law, being §§ 4156-4209 of the Compiled Laws of Oklahoma of 1909, and an act passed March 11, .1911, Session Laws of Oklahoma, 1910-1911, c. 70, pp. 154-156.

The contentions of the Government, on the other, hand, are:

First, that the act of 1895 prohibits the liquor traffic in the Indian. Territory, regardless of any question concerning the term “Indian country,” or concerning the title to particular lands, or the race or color of the persons affected.

Secondly, that the extinguishment of the Indian land title .to the-particular locus in quo did not remove it from the operation of § 2139, Rev. Stat., as amended by the acts of 1892 and 1897, because (among other reasons,) a contrary intent is manifested in the treaties and statutes under which that title was extinguished.

. Thirdly, That neither by. admitting Oklahoma to statehood, nor by anything in the Enabling Act, did Congress

Renounce its control over the interstate liquor traffic in what had been the Indian Territory.

The question whether the act of 1895 was superseded' by the-act of 1897 was not much discussed in the argument. It is a, question of nicety, having an importance extending beyond the exigencies of the present case. In the view we take of the other questions, however, we may simplify the discussion by assuming (without conceding) that petitioner’s first two points are well taken, and that the act of 1897 did not apply to the Indian Territory because that Territory was covered by the special act of 1895. This. at the same time renders' it unnecessary for us to consider his third contention, viz., that the locus in quo was not Indian country within the meaning of the act of 1897, because of the extinguishment of the Indian title.

We may thus proceed at once to the question of the effect upon the act of 1895 of the Oklahoma Enabling Act of June 16, Í906 (34 Stat. 267, c. 3335), and the admission of the State of Oklahoma into the Union pursuant thereto. Since the Government concedes that the act of 1895 has been thereby repealed saving so far as it prohibited the carrying of intoxicating liquors, etc., from another State into the Territory, the matter to be discussed is still further narrowed.

Before passing, however, it should be noted that § 2139, Rev. Stat., and the act of 1897 contain prohibitions respecting the sale of intoxicating liquor to Indians, and in this, and perhaps in - other important respects, cover ground not covered by the act of 1895. We must not be understood as deciding that these prohibitions are no longer in force within what was the Indian Territory, either because of the assumed effect of the act of 1895 in superseding the previous general statute of which the act of -1897 was amendatory, or because of the Oklahoma Enabling Act and the admission of the State thereunder.

The assumption we make in favor of the petitioner is for the purposes of the present argument only.

The title and pertinent sections of the Enabling Act are set forth in the margin.1

It will be observed that its first section provides that nothing in the constitution of the new State shall be con

strued “to limit or affect the authority of the Government of the United States to make any law or regulation re

specting such Indians, their lands, property or other rights by treaties, agreement, law, or otherwise, which it would have been competent to make if this act had never been passed.” ■ Also that § 3 requires that the constitution shall prohibit the manufacture and sale of intoxicating -liquors within those parts of the proposed State known as the Indian- Territory and the Osage Indian Reservation, and within any other parts of said State which existed as Indian reservations on January 1, 1906, .and shall prohibit the shipment or conveyance of such liquors from other parts of the State into the portions just described; the prohibition to continue for a period of 21 years, and thereafter until the people shall otherwise provide by constitutional amendment and proper state legislation; with a proviso for the establishment of state agencies for the sale of liquors for medicinal purposes and to bonded apothecaries, of denaturized alcohol for industrial purposes and of alcohol for scientific purposes; and. with elaborate provisions for carrying the prohibition into effect and preventing any abuse of the limited privileges conferred; it being declared, at the same time, that “Upon the admission of said State into the Union these provisions shall be immediately enforceable in the courts of said State.”

Pursuant to this act, a constitutional convention prepared and submitted to the people for adoption a constitution containing the clauses thus prescribed by Congress. At the same time a separate constitutional provision was submitted, for establishing statq-wide liquor prohibition, substantially in the same terms and subject to the same provisions that were prescribed, with respect to the Indian Territory and the Indian reservations, by the Enabling

Act. The constitution' and the separate constitutional provision were duly adopted by the people, and on November 16, 1907, by proclamation of the President, Oklahoma was admitted as a State of the. Union.

No doubt the Enabling Act, followed by the adoption of the constitution therein prescribed and the admission of the new State, had the effect of'remitting to the state government the enforcement of the prohibition respecting the manufacture, sale, barter, etc:, of intoxicating liquors within the State, and respecting commerce in such liquors conducted- wholly within ■ thé . State; and, to the extent that the scheme of prohibition established by the Enabling. Act covered the same field that had. been covered by .the act of 1895, the latter act must be considered as impliedly repealed. But the act of 1895 included offenses that are not covered by- the prohibition scheme of the Enabling Act; it prohibited the carrying of intoxicating, liquors ■ from other States into territory that was included in the State of Oklahoma! And the question for present solution is whether the act of 1895, having been partially repealed' as just indicated, remains in force as a prohibition against such interstate traffic. In deciding it we shall do wellf to bear in mind that the offense of importing or “introducing” or “carrying in” such liquors into a protected’district is different in its nature and readily distinguishable! from the offenses of manufacturing, selling, etc., within the district; that from the earliest times they have been treated in Federal legislation as different offenses; that Congress for many years has consistently pursued the pÓlicy of forbidding sales of liquor to Indians and excluding'1 it from country occupied by them; that the prohibition 'of importations has been deemed necessary to effectuate the purposé of preventing the use of it in protected districts ; that the act of 1895 was passed for the evident purpose of enforcing the two-fold prohibition in the Indian, Territory; and that by agreements with the Indian tribes

inhabiting the Territory (as will appear below) the United States was, to some extent at least, pledged to maintain . the prohibition. Besides these considerations, it is to be noted- that the Enabling Act, while containing most stringent clauses for preventing (at least for twenty-one years) the manufacture of and traffic in liquors within the Indian Territory,- and their transportation from other parts of the new State into the .Territory, imposes no duty upon the new State' with respect to preventing liquors from being brought, into the Territory from other States. .

■ In view of these considerations, and others to be mentioned, it seems to us that Congress, so far frdm intending by the Enabling Act to repeal so much of the act of 1895 as prohibits the carrying of intoxicating liquors into the Indian Territory from points without the State, framed' the Enabling Act with a clear view of the distinction, between the powers appropriate to be exercised by the new "State over matters within her borders, and the powers appropriate to be exercised by the United States ever traffic originating beyond the borders of the new State and extending within the Indian Territory.

In addition, there is the proviso contained in section one of the act, that nothing contained in the state -constitution shall be construed “to limit or affect the right, or authority of the Government of the United States to make any law or regulation respecting such Indians, their lands, property, or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this act had never been passed.” It is contended that this does not preserve the existing laws and regulations respecting the Indians, but .rather excludes thednference of their continued force and existence by indicating á purpose on the part of Congress to thereafter enact regulations for the protection of the Indians in Oklahoma if necessity requires. This, we think, is an inadmissible

construction. We deem.it unreasonable to suppose that' Congress, possessing the constitutional 'power and recognizing the moral duty to make laws and regulations respecting the Indians, and having already established laws and regulations of this character applicable in the Territory, including some that were established, by treaties and agreements, should resolve to wipe them out, and thereby impose upon future Congresses the labor and difficulty of establishing other proper laws and regulations in their stead. In our opinion, the purpose expresseddn the proviso to reserve to the Government of the United States the authority to make laws and regulations in the, future respecting the Indians is, under the circumstances, evidence tending to negative a purpose to repeal by implication the existing laws and regulations on the subject.

Of course an act of Congress may repeal a prior treaty as well as it may repeal a prior act. The Cherokee Tobacco, 11 Wall. 616; Fong Yue Ting v. United States, 149 U. S. 698, 720; Ward v. Race Horse, 163 U. S. 504, 511; Draper v. United States, 164 U. S. 240, 243.

But it is a settled rule of statutory construction that repeals by implication are not favored, and will not be held to exist if there be any other reasonable construction. Cope v. Cope, 137 U. S. 682, 686, and cases cited; Ward v. Race Horse, supra.

The reservation of the authority of Congress to legislate in the future respecting the Indians residing within the new State is clearly supportable under' the Federal Constitution,' Art. I, § 8, which confers upon Congress the .power “to regulate comméree with foreign nations, and among the several states, and with the Indian tribes.” It has been repeatedly held by this court that under this clause traffic or intercourse with an Indian tribe or with a member of such a tribe is subject to the regulation of Congress, although it be within the limits of a State. United States v. Holliday, 3 Wall. 407, 418; United States

v. *43 Gallons of Whiskey, 93 U. S. 188, 195, 197; Dick v. United States,* 208 U. S. 340, and cases cited.

And it is as clearly consistent with the Constitution to maintain in force an existing act of Congress relating to such traffic and intercourse, so that it shall continue effective within the limits of the new State, as it is to reserve the right to enact new laws in the future upon the same subject-matter.

We must read the proviso contained in § 1 of the Enabling Act, and also the declaration in § 21 that “The laws of the United States not locally inapplicable shall have the same force and effect .within the said state as elsewhere within the United States,” in the light of the existing relations, then recently established by treaties and by acts of Congress, between the Government of the United States and. the Five Civilized Tribes that occupied- the area known as the Indian Territory. Although those tribes had long been treated more liberally than other Indians, they remained none the less wards of the Government, and in all respects subject to its control.' Cherokee Nation v. Southern Kansas R. R. Co., 135 U. S. 641, 653, and cases cited. And after Congress, in the year 1893, had inaugurated the policy of terminating their tribal existence and government and allotting their lands in severalty (act of March 3, 1893,. c. 209, § 16; 27 Stat. 645), agreements were negotiated by the Dawes Commission with each .of the tribes designed to carry out the objects indicated; and in each of those agreements there was some recognition of the importance of preserving restrictions upon the introduction of intoxicating liquors from without and the traffic in them within the Indian Territory.

The agreement with the Seminóles wa's made in 1897 (30 Stat. 567), with the Creeks in 1901 and 1902 (31 Stat. 861, 32 Stat. 500), with the Choctaws and Chickasaws in Í898 (30 Stat. 507) and in 1902 (32 Stat. 641), and with the Cherokees in the latter year (32; Stat. 716).

Section 73 of "the agreement with the Cherokees (32 Stat. 727) continued in force in that Nation the fourteenth section of an act of June 28, 1898, entitled “An act for the. protection of the people of the Indian Territory and for other purposes,” (30 Stat. 500), which contained a proviso against the sale of liquor in the Territory, and against the introduction thereof into the Territory.

In the first Choctaw and Chickasaw agreement there was a provision (30 Stat. 509) that no law or ordinance should be passed by any town interfering with the enforcement of or conflicting with the laws of the United States in force in said Territory, “and the United States agrees to maintain strict laws in the territory, of the Choctaw and Chickasaw tribes against the introduction, sale, barter, or giving away of liquors and intoxicants of any kind or quality.”

In the Choctaw-Chickasaw agreement. of 1902, § 64,. which provided for the cession to the United States ‘of lands at the Sulphur Springs, contained a provision (32 Stat. 656) that “Until otherwise provided by Congress, the laws of the United States relating to the introduction, possession, sale, and giving away of liquors or intoxicants of any kind in the Indian country or Indian Reservations shall be applicable to the lands so ceded, and said lands shall remain within the jurisdiction of the United States court for the Southern District of Indian Territory.”

The Seminole agreement likewise provided that “the United States'agrees to maintain strict laws in the Seminole country against the introduction, sale, barter, or giving away of intoxicants of any kind or quality.” (30 Stat. 568.)

The first Creek agreement provided that “The United States agrees to maintain strict laws in said Nation against the introduction, sale, barter, or giving away of liquors or intoxicants of any kind whatsoever.” (Act of March 1, 1901, c. 676. § 43, 31 Stat. 872.) And this was not modi

fied by the supplemental agreement. (Act of June 30, 1902, c. 1323, 32 Stat. 500.)

It seems to us that the provisions of the Enabling Act show that Congress recognized that, because of these agreements or otherwise, the Government of the United States was under a duty to the inhabitants of the Indian Territory different from its duty to the inhabitants of the other territory that- went to form the new State. We are unable otherwise to. explain the insertion in the proposed constitution of the clause establishing liquor prohibition within the Indian Territory, and the exclusion of the other territory from the operation of this clause. This action is indicative of a purpose on the part of Congress to fulfill the spirit as well as the letter of the agreements with the Five Tribes. There were differences in those treaties, so far as the liquor traffic is concerned. But in the Enabling Act all the tribes were treated alike, and in a manner to fulfill the amplest promise given to any tribe, so far — but only so far — as the establishment of general prohibition within the new State was concerned.

But if the Federal law that had prevented the bringing in of intoxicating liquors from without the State was at the same time repealed, the pledges of the Government were thereby in a material part broken. For manifestly it would be of comparatively little use -to prohibit, the manufacture of intoxicating liquors within the. Territory and their shipment from other parts of the State into the Territory, if at the same time all laws prohibiting the introduction of such liquors from other States into the Territory were to be repealed.

And it is clear that in framing the Enabling Act,. Congress was- mindful not only of its jurisdiction over commerce with the Indian tribes,, but was mindful that traffic in .liquors between one State and another is subject , only to the control of- Congress. Bowman v. Chicago & N. W.

Railway Co., 125 U. S. 465; Leisy v. Hardin, 135 U. S. 100; Lottery Case, 188 U. S. 321.

It is argued that the result’ of engrafting the provisions of the Enabling Act upon that part of the act of-1895 which remains unrepealed is a statutory system “so incongruous and indefinite in purpose and effect that it would be impossible to enforce it.” '

This contention is based largely upon, the fact that the prohibition of the manufacture, sale, barter, etc., of intoxicating liquors within those parts of the State that were known as the Indian Territory and Osage Indian Reservation, and the other parts of the State which were Indian reservations on January 1, 1906, and the prohibition of the shipment or conveyance of such liquors from other parts of the State into the portions just mentioned, is subject to a proviso that the legislature may provide by. law for state agencies for the sale of such liquor for medicinar purposes, for the sale of denaturized alcohol for industrial purposes, for the sale of alcohol for scientific purposes, and for the sale of liquors to’ bonded apothecaries.

It is argued'that in the interim between the admission of the State and the enactment of-legislation for establishing state liquor agencies, there would necessarily be a period of considerable duration (as the' event happened, it was over four months,) during which, in what was formerly the Indian Territory, it would be doubtful whether sales of liquor would be punishable in the Federal or in the state courts, and whether according to the act of 1895 or under the different penalties of the Enabling Act.

It may be conceded that until the State took action, in accordance with the constitution, for the establishment of agencies for the sale of liquors for the limited purposes mentioned, such sales could not. be made at all, and that all sales which otherwise were iñ violation of the prohibition of the constitution were punishable in the courts; to what

extent punishable in the Federal courts, and to what extent in the state courts, it is not worth while to spend time in considering. Some temporary confusion and uncertainty may be unavoidable upon the establishment of a state government under such conditions; but this has little bearing upon the question before us.

A more serious argument is that which is based upon the effect of the constitutional provision respecting the establishment and maintenance of state agencies for the disposition of liquor, after the state legislature shall have provided by law for such agencies; for when such a law has been enacted we are brought to the permanent condition of things that was in the contemplation of Congress.

And here it is urged that as to the offense of carrying intoxicating liquor into the Territory, it must be that the introduction thereof for supplying the needs of the state agencies was permitted by the Enabling Act, and that the provisions of the act of 1895 must be taken to be repealed to that, extent, leaving,the act in force against the introduction of liquor for other purposes. But it is said (to quote from the brief): “If that was the purpose of the Enabling Act it entirely fails to express it, because it does not provide who may so introduce liquors into the Territory, and who may not, for the purpose of supplying local agencies,.and the law would be so framed that neither court nor layman could ascertain by reading it by whom and under what circumstances such introduction was innocent or criminal.”

No doubt, in-order to give effect to the constitutional provision that -permits the legislature to provide' by law for agencies under the supervision of the State for the sale of liquors for the limited purposes specified, it is necessary that the state agencies shall procure these liquors from some source.

The authorization is in the form of a.proviso. Whether^ by fair construction, it qualifies merely the force of the

clause to which it is subjoined — that is, qualifies merely the prohibition against the manufacture, sale, etc., of intoxicating liquors within the Indian Territory and the Indian reservations, and' the prohibition against the shipment of such liquors from other parts of the State into the portions mentioned — or whether, on the other hand, it has the effect of permitting liquors to be introduced from without the State, is a question that need not detain us. Upon the former construction, the State would presumably be obliged to cajise the liquors to be manufactured within its own borders for the supply of its distributing agencies. Upon the latter construction, the State would be at liberty to import the necessary liquors from beyond its borders. In the one case, as in the other, the operation would be lawful and innocent when conducted under the authority of the State; otherwise unlawful. It is not to be presumed that the State would conceal or cloak its operations, or leave jts agents without evidence of their authority. We can se'e no more-practical difficulty here than there is in determining in any -other matter that is subject to public regulation — for instance, the killing or transportation of game, the manufacture or sale of liquor — whether a-given act is .done with or without a license from the State. ■ The argument ab inconvenienti is without force.

We are reminded that “laws which create crime,ought' to be so explicit that all men subject to their penalties may-know'what acts it is their duty to avoid',” (United States v. Brewer, 139 U. S. 278, 288) and that ambiguity and uncertainty about the meaning of a criminal statute ought tó be resolved by a strict interpretation in favor of the liberty of the citizen,

But there' is- no uncertainty or ambiguity about the prohibition of the act of 1895 against carrying intoxicating liquors into the Indian Territory. It is not suggested that there is any express repeal of that prohibition. And

we are unable to see that a pro tanto repeal by implication leaves anything doubtful or ambiguous in the meaning of. that which remains. .

It is not our purpose to qualify the doctrine established by repeated decisions of this court that the admission of a new State into the'Union on an equal footing with the original States imports an equality of power over internal affairs. The cases cited by counsel for the petitioner under this head are cases that dealt with matters wholly internal.- United States v. McBratney,. 104 U. S. 621; Draper v. United States, 164 U. S. 240; Matter of Heff, 197 U. S. 488, 505. And see Ward v. Race Horse, 163 U. S. 504; United States v. Celestine, 215 U. S. 278, 288; United States v. Sutton, 215 U. S. 291, 294; Hallowell v. United States, 221 U. S. 317, 323; Dick v. United States, 208 U. S. 340.

The most recent 'decision of this court upon the subject qf the proper construction of acts of Congress passed for . the' admission of new States into the Union is Coyle v. Smith, 221 U. S. 559; where it was held that-the Oklahoma Enabling Act (34- Stat., c. 3335, p, 267), in providing that the capital of the State should temporarily be át the City of Guthrie, and .should not he changed therefrom previous to the year 1913,. ceased to be a limitation- upon the power of the State after its admission. The court, however, -was careful to. state (221 U.. S. 574): “It may, well happen- that Congress should embrace in an .enactment introducing a new State into the Union legislation intended as a regulation of commerce among the States, or. with Indian tribes' situated within the limits of such-new state, or regulations touching the sole care and disposition of. the'public lands or reservations therein, which, might be' upheld as legislation within the sphere of the plain power of Congress. But in every-such case such legisla-' tion would derive its force not from any agreement or compact with the proposed new State, nor by reason of-its .acceptance of such enactment as a term of admission, but

solely because the. power .of Congress extended to the subject, and therefore would not operate to restrict the State’s legislative power in respect of any matter which was not plainly.within the regulating power of Congress.”

We áre here dealing with one of those matters such as are referted to in this citation. The power of Congress to regulate commerce between the States, -and with Indian tribes situate within the limits of a State, justifies Congress when creating a new State out of territory inhabited by Indian tribes, and into which-territory the introduction of intoxicating liquors is by existing laws and treaties prohibited, in- só legislating as to preserve those laws and treaties in force to the extent of excluding interstate traffic in intoxicating liquors that would be inconsistent with the prohibition. Dick v. United States, 208 U. S. 340, 353.

This being so, and since we find in the Oklahoma Enabling Act no repeal, express or implied,, of the act of 1895 so far as pertains to the carrying of liquor from without the new State into that part of it which was the Indian Territory (saving as to liquor brought in by the State for the use of state agencies established under the provisions of the Enabling Act), it follows, upon the admitted facts, that the United States District Court has jurisdiction to punish the petitioner for the. offense that he has committed.

The petition for a writ of habeas corpus and the accompanying application for .certiorari will be